Ryan Nelson

This week, Justice Brett Kavanaugh sat for his first arguments at the U.S. Supreme Court. His path to those arguments, however, left countless Americans angry and relations between the two parties at a new low. Unfortunately, the fight over the judiciary has not ended with Kavanaugh’s confirmation. Instead, it has returned to a familiar front: lower court nominations. With Senate Majority Leader Mitch McConnell pushing for the confirmation of over thirty pending lower court nominations on the Senate Executive Calendar, many more confrontations are upcoming. Below, we highlight ten nominees currently pending on the Senate floor who are expected to cause controversy, ranked in order from least to most likely to trigger a fight. (All ten nominees passed through the Senate Judiciary Committee on 11-10 party-line votes)

John Campbell “Cam” Barker, the 38-year-old Deputy Solicitor General of Texas, has been nominated for a seat on the U.S. District Court for the Eastern District of Texas. As Deputy Solicitor General, Barker joined efforts by Attorney General Ken Paxton to challenge Obama Administration initiatives and protect Trump Administration efforts. In his three years in that position, Barker litigated the challenge (alongside now-Fifth Circuit Judge Andy Oldham) against the Obama Administration’s DAPA initiatives on immigration, defended Texas’ restrictive voter id laws, and sought in intervene in support of President Trump’s travel bans. Barker also litigated to crack down on “sanctuary cities” in Texas, challenged the contraceptive mandate in the Affordable Care Act, and helped to defend HB2, restrictions on women’s reproductive rights struck down by the Supreme Court in Whole Woman’s Health v. Hellersdedt.

In responding to questions from members of the Senate Judiciary Committee, Barker argued that his work at the Solicitor General’s Office represented positions “of my clients, as opposed to my personal positions.” Nevertheless, Democrats have argued that Barker’s work reflects a conservative ideology that is likely to tilt his judicial rulings.

Stephen Robert Clark Sr. is the founder and managing partner of the Runnymede Law Group in St. Louis, Missouri. Clark has advocated extensively for pro-life groups and causes, and has statements on record criticizing Roe v. Wade, Planned Parenthood, and same-sex marriage. For example, Clark advocated for medical schools to stop partnering with Planned Parenthood, suggesting that the schools were “training the abortionists of the future.”

Unlike the other nominees on this list, Clark did have a blue slip returned from the Democratic home-state senator, namely Sen. Claire McCaskill. Nevertheless, Clark was voted out of the Senate Judiciary Committee on a 11-10 vote, with all Democrats opposed. His nomination is expected to draw opposition from pro-choice and reproductive rights organizations.

The 37-year-old Wyrick made waves in 2017 when he became the youngest candidate to be added to the Trump Administration’s Supreme Court shortlist. Wyrick, who currently serves on the Oklahoma Supreme Court, built up a record of aggressive litigation as Oklahoma Solicitor General under then-Attorney General Scott Pruitt. His nomination to the Oklahoma Supreme Court in 2017 was itself controversial due to Wyrick’s purported lack of ties to the Second District, the District from which he was appointed.

Since his nomination to the U.S. District Court for the Western District of Oklahoma, Wyrick has been criticized for his relative youth, lack of experience, and alleged ethical issues from his time as Solicitor General. Specifically, two incidents have been raised. First, while defending Oklahoma’s death penalty protocol in Glossip v. Gross, Wyrick’s office mis-cited the recipient of a letter sent to the Texas Department of Corrections in their brief and was forced to issue a letter of correction. Additionally, Wyrick was directly called out in oral argument by Justice Sonia Sotomayor for mis-citing scientific evidence. Second, Wyrick had engaged in communications with Devon Energy, an energy company whose lobbyist had ghost-written letters sent out by Attorney General Scott Pruitt. The Leadership Conference on Civil and Human Rights has alleged that Wyrick was aware and potentially complicit in the ghost-writing.

The 63-year-old Norris currently serves as the Majority Leader in the Tennessee State Senate. His nomination is one of the longest pending before the U.S. Senate, having been submitted on July 13, 2017. Norris has twice been voted out of the Judiciary Committee on party-line votes, with Democrats objecting to his conservative record in the Tennessee State Senate. In particular, they note that Norris pushed to block the resettlement of Syrian refugees in Tennessee, suggesting that it would allow “potential terrorists” to enter the state. For his part, Norris has argued that his work in the Tennessee State Senate was on behalf of his constituents, and that it would not animate his work on the bench.

The general counsel to the Roman Catholic Archdiocese (and the wife of former Senator David Vitter), Wendy Vitter has been nominated to the U.S. District Court for the Eastern District of Louisiana. Vitter drew criticism at her hearing for refusing to say that the Supreme Court’s decision in Brown v. Board of Education was correctly decided (a decision this blog noted at the time could be justified). Vitter has also drawn sharp criticism for her pro-life and anti-birth control activism, including her apparent endorsement of the views of Angela Lanfranchi, who has suggested that taking birth control increases women’s chances of being unfaithful and dying violently.

The son of a former Congressman, Howard C. Nielson Jr. has been nominated for the U.S. District Court for the District of Utah despite being based at Cooper & Kirk in Washington D.C. Nielson has two powerful Judiciary Committee members in his corner, Sens. Orrin Hatch and Mike Lee. Nevertheless, Nielson has faced strong opposition based on his work in the Office of Legal Counsel under President Bush. Specifically, Democrats have objected to Nielson’s alleged involvement in the approval of the controversial memos that justified the use of torture. In his defense, Republicans have argued that Nielson was not involved in the drafting of the memos and worked to get them rescinded. Democrats also object to Nielson’s work defending Proposition 8, the California ballot measure that revoked the right of same-sex couples to marry. In particular, LGBT groups have complained that Nielson tried to move for the presiding judge in the case, Judge Vaughn Walker, to recuse himself based on the judge’s sexual orientation.

The General Counsel for Melaleuca, Inc. in Idaho Falls, Nelson’s nomination to be Solicitor of the Department of the Interior was pending when he was tapped for the U.S. Court of Appeals for the Ninth Circuit. Nelson has drawn critical questions from Committee Democrats regarding his work at Melaleuca, particularly focused on his filing of defamation actions against Mother Jones for their work investigating Melaleuca Founder Frank Vandersloot. The lawsuit against Mother Jones has drawn criticism for chilling First Amendment rights and trying to silence investigative journalism.

Kacsmaryk, a nominee for the U.S. District Court for the Northern District of Texas, currently serves as Deputy General Counsel for the First Liberty Institute, a non-profit firm focused on cases involving “religious freedom.” In his role, Kacsmaryk has been particularly active on LGBT rights issues, challenging the Obama Administration’s efforts to ban discrimination against LGBT employees by government contractors, and its initiatives on transgender rights in public schools. In his writings, Kacsmaryk has criticized same-sex marriage alongside no-fault divorce, the decriminalization of consensual pre-marital sex, and contraception as weakening the “four pillars” of marriage. He has also lobbied for legislation exempting individuals had religious beliefs or moral convictions condemning homosexuality from civil rights enforcement. Kacsmaryk’s advocacy has drawn the strong opposition of LGBT rights groups.

A Pittsburgh-based attorney, Porter was nominated to the U.S. Court of Appeals for the Third Circuit over the express opposition of home state senator Bob Casey. As Republicans processed Porter over Casey’s objection, Democrats raised both procedural and substantive objections to Porter, including his writings urging the Supreme Court to strike down the Affordable Care Act’s individual mandate and his previous advocacy against the confirmation of Justice Sonia Sotomayor. In his own statement, Casey pulled no punches, stating that Porter had “an ideology that will serve only the wealthy and powerful as opposed to protecting the rights of all Americans.”

Perhaps no lower court nominee has incited as much anger as Farr, the Raleigh based litigator tapped for the longest pending federal judicial vacancy in the country. Farr had previously been tapped for this seat in the Bush Administration but was blocked from a final vote by the then-Democratic-controlled Senate. Through the Obama Administration, this seat was held over by Sen. Richard Burr’s refusal to return blue slips on two African American nominees, including one recommended by him.

Since Farr’s renomination by Trump, he has faced opposition from civil rights groups, including one who has referred to him as a “product of the modern white supremacist machine.” At issue is Farr’s representation of the North Carolina legislature as it passed a series of restrictive voting laws with a disproportionate impact on minority communities. Many of these restrictions were struck down by the Fourth Circuit, which noted that the laws targeted African Americans with “surgical precision.” Additionally, Farr has been charged with sending out thousands of postcards to African American voters in 1990 threatening to have them arrested if they voted. (Farr has denied this latter charge, arguing that he was unaware that the postcards had been sent out.) With Democrats and civil rights groups convinced that Farr worked to disenfranchise African Americans, and Republicans equally passionate in their support, Farr’s ultimate confirmation is sure to draw a level of intensity that district court judges rarely evoke.

Idaho attorney Ryan Nelson was nominated by President Trump last year to be Solicitor (chief appellate attorney) for the Department of the Interior. However, Nelson’s nomination was never confirmed by the Senate. Now, Nelson is getting a shot at a different job: a lifetime appointment to the U.S. Court of Appeals for the Ninth Circuit.

Background

An Idaho native, Ryan Douglas Nelson was born in Idaho Falls in 1973. Nelson received a B.A. from Brigham Young University in 1996 and a J.D. from the J. Reuben Clark Law School at Brigham Young University.[1] After graduating from law school, Nelson clerked for Judge Karen Henderson on the U.S. Court of Appeals for the D.C. Circuit and for Judges Charles Brower and Richard Mosk on the Iran-United States Claims Tribunal.[2]

After his clerkships, Nelson joined Sidley Austin as an associate in their Washington D.C. Office.[3] Five years later, he moved to the Department of Justice to be Deputy Assistant Attorney General for the Environment and Natural Resources Division.[4] In 2008, Nelson moved to the Executive Office of the President as Deputy General Counsel and briefly worked as Special Counsel for the Senate Committee on the Judiciary, focusing on the nomination of Justice Sotomayor.

In 2009, Nelson returned to Idaho Falls to be General Counsel for Melaleuca, Inc, an online Wellness Product company.[5] He is still with the company.[6]

On July 31, 2017, Nelson was nominated by Trump to be Solicitor to the Department of the Interior.[7] On September 19, the nomination was unanimously voted out by the Senate Energy and Natural Resources Committee. However, soon after, his nomination, alongside three others, was blocked by Sen. Richard Durbin (D-Ill.) as part of his objection to the Administration’s national monuments policy.[8] At the end of 2017, senators were unable to reach an agreement to hold over Nelson’s nomination and it was returned to the President.

In 2018, Trump renominated Nelson to be Solicitor to the Department of the Interior. However, his nomination was then blocked by Sen. Bill Nelson (D-Fla.) as part of negotiations with Zinke over drilling off the coast of Florida.[9] As such, Nelson’s nomination was still pending when his name was announced for the Ninth Circuit, and was withdrawn as his new nomination reached the Senate.

History of the Seat

Nelson has been nominated for an Idaho seat on the U.S. Court of Appeals for the Ninth Circuit. This seat is scheduled to open on August 11, 2018 when Judge Norman Randy Smith moves to senior status.

In November 2017, while his nomination to be Solicitor for the Department of the Interior was pending, Nelson expressed his interest in the Ninth Circuit to Idaho senators.[10] In February 2018, Nelson interviewed with the White House Counsel’s Office and was formally nominated on May 15, 2018.[11]

Political Activity & Memberships

Nelson has been a member of the Idaho Republican Party since 2010, including serving as the Chairman for the 2012 caucus in Idaho Falls.[12] Nelson also volunteered on the Romney Presidential Campaign in 2012 and worked as a legal advisor for President Bush’s re-election campaign in 2004.[13]

Additionally, Nelson has occasionally donated to Republican candidates, including a $2000 donation to Romney in 2011.[14] Nelson has also donated to U.S. Senators Mike Lee, James Risch, and Marco Rubio.[15]

Furthermore, Nelson has been a member of the Federalist Society for Law and Public Policy Studies (a conservative legal organization that is the source of many Trump nominees) since 1997.[16]

Legal Experience

After his clerkship, Nelson spent five years working as an Associate at Sidley Austin. In this role, Nelson handled primarily civil and appellate law. Among the matters he handled at Sidley, Nelson defended a corrections contractor against a civil suit alleging the abuse of undocumented immigrants at the contractor’s facilities.[17] Nelson was also part of the legal team supporting a suit brought by the State of Utah against efforts by the Census Bureau to fill in gaps in its work.[18]

From 2006 to 2008, Nelson served as Deputy Assistant Attorney General for the Department of Justice, defending agency decisions on land use, environmental, and energy issues. In this role, Nelson personally argued 13 appeals, including the defense of using purse-seine nets in tuna farming despite the impact on dolphin populations.[19]

Notably, Nelson argued that the presence of a Latin cross in a San Diego war memorial did not violate the Establishment Clause of the U.S. Constitution.[20] While U.S. District Judge Larry Burns upheld the cross’ constitutionality, the Ninth Circuit eventually reversed.[21]

Since 2009, Nelson has been Counsel to Melaleuca, Inc., an Idaho Falls based wellness company. During Nelson’s tenure as Counsel, Melaleuca and its founder Frank VanderSloot filed a defamation suit against Mother Jones magazine for its coverage of VanderSloot’s political advocacy, including his alleged “outing” of Idaho investigative reporter Peter Zuckerman as gay.[22] A second defamation suit was filed against Zuckerman after he complained about the outing on the Rachel Maddow Show.[23] Ultimately, the suit against Mother Jones was dismissed on First Amendment grounds,[24][25] while the suit against Zuckerman was eventually settled.[26]

Overall Assessment

The Ninth Circuit has a (somewhat undeserved) reputation as an overly liberal court, and has attracted the President’s scorn for some of its rulings. As such, the nomination of the conservative Nelson could be touted (in some circles) as an effort to shift the court to the right. But setting the ideology of the pick aside, Nelson’s background in environmental law is particularly suited to the Circuit covering some of the country’s most scenic public lands.

This is not to say that Nelson will have an easy confirmation. Specifically, senators may question Nelson’s role in the defamation actions against Mother Jones and reporter Peter Zuckerman. Given the ultimate dismissal of the suit, senators may probe Nelson’s views of defamation litigation, as well as his perspective of New York Times v. Sullivan and the freedom the press is given in reporting on matters of public concern. Ultimately, Nelson’s confirmation will likely turn on such questions.